January 3, 2009
No Health Effects, but Punitives Possible Against 3M on Trespass and Negligence
The Star Tribune has details on the trial court ruling relating to PFCs in the groundwater in Washington County, Minnesota. Essentially, the plaintiffs can't go forward with claims that the PFCs harmed their health, but can proceed on a trespass claim and a (slightly vague from the story) negligence claim, and have the potential to obtain punitive damages on those claims.
January 1, 2009
Two By Leflar
Just in time for the AALS panel on Foreign Tort Law Beyond Europe, Robert Leflar (Arkansas) has posted on SSRN two pieces about regulating the Japanese medical profession. First up is The Regulation of Medical Malpractice in Japan. Here is the abstract:
How Japanese legal and social institutions handle medical errors is little known outside Japan. For almost all of the 20th century, a paternalistic paradigm prevailed. Characteristics of the legal environment affecting Japanese medicine included few attorneys handling medical cases, low litigation rates, long delays, predictable damage awards, and low-cost malpractice insurance. However, transparency principles have gained traction and public concern over medical errors has intensified. Recent legal developments include courts' adoption of a less deferential standard of informed consent; increases in the numbers of malpractice claims and of practicing attorneys; more efficient claims handling by specialist judges and speedier trials; and highly publicized criminal prosecutions of medical personnel. The health ministry is undertaking a noteworthy ''model project'' to enlist impartial specialists in investigation and analysis of possible iatrogenic hospital deaths to regain public trust in medicine's capacity to assess its mistakes honestly and to improve patient safety and has proposed a nationwide peer review system based on the project's methods.
Next, we have 'Unnatural deaths,' Criminal Sanctions, and Medical Quality Improvement in Japan. Here is a portion of the abstract:
This Article explains the significance in Japan, hitherto little noticed elsewhere, of criminal law in regulating medical practice. The Article offers reasons of law and social structure for criminal law's role in Japanese medicine, reasons stemming in large part from the weakness of other institutions for oversight of medical quality: Japanese medicine's accountability vacuum. The requirement that physicians notify police of "unnatural deaths" is then explored - a requirement made controversial because of its interpretation by the Supreme Court of Japan to apply not only to deaths from violent crime, natural disaster and suicide, but also to deaths potentially caused by substandard medical care. This police notification requirement, taken together with Criminal Code sanctions of "professional negligence causing death or injury," has sometimes turned Japanese hospitals into crime sites, and doctors and nurses into suspects in death inquiries. The specter of criminal liability has provoked a counter-reaction from the medical world analogous to the movement for medical "tort reform" in the United States.
Born, Viscusi, and Baker on Med Mal Tort Reform Effects
Patricia Born (Cal State, Northridge), Kip Viscusi (Vanderbilt), and Tom Baker (Penn) have posted The Effects of Tort Reform on Medical Malpractice Insurers' Ultimate Losses on SSRN. Here is the abstract:
Whereas the literature evaluating the effect of tort reforms has focused on insurers' reported incurred losses, this paper examines the long run effects of reforms using the developed losses from a comprehensive sample of insurers writing medical malpractice insurance from 1984-2003. The long run effects of reforms are greater than insurers' expected effects, as five year developed losses and ten year developed losses are below the initially reported incurred losses for those years following reform measures. The quantile regressions show that reforms have the greatest effects for the firms that are at the high end of the loss distribution. The beneficial effects of reforms on developed losses are more pronounced than those obtained from initially-reported losses, suggesting that insurers underestimated the true effects of the reforms.
December 31, 2008
Happy New Year!
Happy New Year to all our readers!
At about 9:00 this morning, we received our 200,000th visitor to the TortsProf blog. (We're closing in on the 300,000th page view.)
(In case you're curious, the 200,000th visit was from someone at the Chicago office of Jones Day. Thanks for coming, and sorry you're having to work today.)
We had some plan to note the 200,000th visitor (beyond this) but I've been buried in alternating grading and illness so we haven't followed through. But perhaps we will in the new year.
In any event, thanks to everyone for continuing to visit and to the LawProfessorBlogs.com network for its support.
Arkansas Sizzler Suit Settled
December 30, 2008
According to the WSJ Law Blog, the Wisconsin Court of Appeals has cleared the way for a ninth grade cheerleader to bring a negligence claim against her fellow student cheerleader for allegedly failing to properly spot her during a stunt. The court found that cheerleading was not a contact sport, and therefore, not covered by a Wisconsin statute requiring recklessness or intent to impose liability. More on the decision from Matthew Mitten at the Marquette U Law Faculty Blog. Howard Wasserman at Prawfs also adds his thoughts, and questions the court's approach (i.e., the focus on contact between "opponents"), but not the result. Howard notes that the case is now before the Wisconsin Supreme Court.
Tort Reform on GOP Agenda in Tennessee
The Tennessean reports that GOP lawmakers have tort reform on their agenda for next year. Possible legislation may include caps on damages against nursing homes, although a similar measure died in committee last year.